Under the Commission’s current EAS rules, wireline common carriers are not required to participate in EAS. In the Further Notice, the Commission noted that some traditional telephone companies have indicated that they intend to compete with cable television service and DBS providers in bringing multichannel video programming service to customers’ homes through fiber optic connections.146 The Commission sought comment on whether Wireline Video Providers should have public alert and warning responsibilities similar to those of other providers subject to the EAS rules, if there are particular attributes of wireline technology that would make it easier (or more difficult) to deliver alerts and warnings to the public, and whether there are policy considerations the Commission should consider regarding requiring Wireline Video Providers to provide alerts and warnings.147
Most commenters, including Wireline Video Providers, agree that Wireline Video Providers should be subject to the same EAS obligations as other multichannel video programming distributors (MVPDs).148 These commenters agree that it will be important to ensure that all consumers receive the benefits and protections of EAS, regardless of the technology used to deliver the video services. They also argue that because many consumers will likely use television programming services offered by Wireline Video Providers, the Commission should require such offers to be EAS-compliant to ensure that the greatest possible number of consumers is alerted in the case of an emergency.
Verizon states that its FiOS service already complies with the EAS obligations that apply to cable operators.149 AT&T asserts that it will “participate in the EAS” whether or not Commission rules mandate it.150 AT&T argues, however, that only a limited set of EAS system receivers provide alert information in an IP format and that video vendors are not technically capable of routing EAS messages to the correct end user. AT&T states that it is developing an IPTV-specific EAS solution for non-broadcast channels, and is working on an interface between EAS equipment and IPTV middleware.151Thus, it requests that no deadlines for non-cable-operator EAS compliance be set before June 30, 2008, and that rules do not “unduly restrict” how IP service providers distribute and display information.152
We agree with commenters that Wireline Video Providers should be considered Participants under our EAS rules. The EAS plays a critical role in providing vital public safety information. The long-term resilience of the EAS could be significantly increased by careful implementation that could better accommodate, and even harness, the innate flexibility of IP-based networks that can route around damaged nodes. Moreover, a viewer’s reasonable expectation regarding the availability of alerts over television programming is identical, whether the programming is over-the-air broadcasting, cable, DBS, or a new wireline video service. By adopting a technologically neutral EAS obligation today, the Commission is enabling these emerging service providers to integrate EAS at an early developmental stage.
Under section 624(g) of the Act and the Commission’s EAS regulations, providers of “cable systems” must participate in EAS.153 Section 624(g) of the Act provides that “each cable operator shall comply with such standards as the Commission shall prescribe to ensure that viewers of video programming on cable systems are afforded the same emergency information as is afforded by the emergency broadcasting system pursuant to Commission regulations in subpart G of part 73, title 47, Code of Federal Regulations.”154 The Commission imposed EAS regulations on cable operators pursuant to this mandate in 1994, concluding that cable “is invaluable in the dissemination of information during emergencies.”155 The term “cable operator” means a person “who provides cable service over a cable system,”156 including “a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of this Act … to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services.”157 Thus, section 624(g) expressly authorizes the imposition of EAS requirements on Wireline Video Providers to the extent that they qualify as “cable operators” under the Act.
To the extent that Wireline Video Providers do not qualify as “cable operators” under the Act, we require that they participate in EAS pursuant to our Title I ancillary jurisdiction and in connection with our specific responsibilities under sections 624(g) and 706.158As a general matter, the Commission has discretion to use ancillary jurisdiction when the Commission has Title I subject matter jurisdiction over the service and the assertion of jurisdiction is “reasonably ancillary to the effective performance of [its] various responsibilities.”159Wireline Video Providers fall within the scope of the Commission’s jurisdiction because they provide “interstate . . . communication by wire.”160 At least some of their services involve transmission across state lines, meeting the definition of “interstate communication,”161 and they are “wire communication,” which is “transmission of . . . pictures . . . and sounds . . . by aid of wire, cable, or other like connection.”162 Thus, the Commission has subject matter jurisdiction over these services. We also find that imposing an EAS requirement is reasonably ancillary to the effective performance of our responsibilities.163Wireline Video Providers’ participation in the EAS will advance the animating purpose of section 624(g) by ensuring that their video subscribers have access to the same emergency information as broadcast and cable television viewers.164 Indeed, we believe that their EAS participation is necessary to preserve and advance the goals of section 624(g), as Wireline Video Providers offer competitive alternatives to the video programming available through broadcast and cable television, and are likely to reach increasingly large portions of the American public as they deploy their services.165 Moreover, requiring Wireline Video Providers to participate in EAS also will further our core public safety mission under Title I, which requires us to take steps to “promot[e] safety of life and property,”166 and section 706, and is consistent with prior Commission actions. Accordingly, we conclude that we have ancillary jurisdiction to require even those Wireline Video Providers that may not be cable operators under the Act to participate in EAS.
As a policy matter, we believe that the reasonable expectations of viewers should guide our efforts to encourage the development of a more comprehensive EAS system. We reaffirm that our long-term goal is to incorporate as many communications technologies as possible into a comprehensive, flexible, and redundant system to deliver EAS alerts quickly to the largest number of consumers.
Wireline Video Providers should be subject to the same EAS requirements as providers of Digital Cable Systems.167 We therefore amend our EAS rules to specifically include Wireline Video Providers. Wireline Video Providers are EAS Participants, however, only to the extent they provide video services; our EAS rules do not impose mandatory EAS obligations on wireline telephone companies providing traditional landline telephone services at this time.168
2.Wireless Participation in EAS
In the Further Notice, the Commission noted that wireless devices are used to reach the American public quickly and efficiently.169 The Commission specifically noted the participation of the wireless industry in FEMA’s DEAS pilot projects and asked what further steps it should take to facilitate wireless provision of EAS alerts, including whether to require wireless carriers to provide emergency alerts.170 It also noted that commenters to the 2004 NPRM had identified technologies that would enable wireless handsets to receive EAS alerts and requested comment on these and other approaches to wireless alert and warning.171 The Commission directed commenters to address the extent to which each approach would permit the use of a common messaging protocol and whether handsets would have to be replaced. Numerous parties responded to these and related questions specified in the Further Notice, resulting in a well-developed record.
As discussed in paragraph 8 above, on October 13, 2006, the President signed the WARN Act into law. Because the WARN Act directs the Commission to initiate a rulemaking regarding the establishment of an alerting system for commercial mobile service (CMS) providers that voluntarily elect to transmit emergency alerts, and the schedule set by the WARN Act precludes initiation of such rulemaking until a later date, we do not address commercial wireless carrier participation in EAS in this Order.